STANDARD FORM OF STORE LEASE
THE REAL ESTATE BOARD OF NEW YORK, INC.
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AGREEMENT OF LEASE MADE AS OF THIS 26TH day of March, 1993 between XXXX
XXXXXXX, party of the first part, hereinafter referred to as OWNER and CHILD'S
PLAYROBICS, INC., a domestic corporation, party of second part, hereinafter
referred to as TENANT.
WITNESSETH: Owner hereby lease to Tenant and Tenant hereby hires from
Owner the entire premises (building, lot, basement and parking lot) located at
000 Xxxxxx X, Xxxxx 7104, lot 499 (listed on 1964 Cert. Of Occup. As lot 522) in
the Borough of Brooklyn, City of New York, for term of Fifteen (15) Years (or
until such term shall sooner cease and expire as hereinafter provided) to
commence on the
Day of nineteen hundred and , and to end on the
thirtieth (30) day of May, two thousand and fourteen both dates inclusive, at an
annual rate of $ . See paragraph "C" hereof.
Which Tenant agrees to pay in lawful money of the United States which
shall be legal tender in payment of all debts and dues, public and private, at
the time of payment, in equal monthly installment in advance of the first day of
each month during said term, at the office of Owner or such place as Owner may
designate, without any set off or deduction whatsoever, excepts that Tenant
shall pay first monthly installment(s) on the execution hereof (unless this
lease be a renewal).
The parties hereto, for themselves, their heirs, distributees,
executors, administrator, legal representatives, successors and assigns, hereby
covenant as follows:
RENT OCCUPANCY
1. Tenant shall pay the rent as above and as hereinafter
provided.
2. Tenant shall use and occupy demised premises for use as a
children play center with refreshment, retail sales and
related use and for no other purpose, tenant shall at all
times conduct its business in a high grade and reputable
manner, shall not violate Articles 37 hereof, and shall keep
show windows and signs in a neat and clean condition.
ALTERATIONS
3. Tenant shall make no changes in or to demised premises of
any nature without Owner's prior written consent. Subject to
prior written consent of Owner and to the provisions of this
articles, Tenant at Tenant's expense, may make alterations,
installations, additions or improvement which are
nonstructural and which do not affect utility services or
plumbing and electrical lines, in or to the interior of
demised premises by using contractors or mechanics first
approved by Owner. Tenant shall, before making any
alterations, installations, additions or improvement, at its
expense, obtain all permits, approvals and certificates
required by any governmental or quasi-governmental bodies
and (upon completion) certificates of final approval thereof
and shall deliver promptly duplicates of all such permits,
approvals and certificates to Owner and Tenant agrees to
carry and will cause Tenant's contractors and
sub-contractors to carry such xxxxxxx'x compensation,
general liability, personal and property damage insurance as
Owner may require. If any mechanic's lien is filed against
the demised premises, or the building of which the same
forms a
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part, for work claimed to have done for, or materials
furnished to, Tenant, whether or not done pursuant to this
article, the same shall be discharged by Tenant within ten
days thereafter, at Tenant's expense, bu filling the bond
required by law. All fixtures and all paneling, partitions,
railing and installations, installed in the premises at any
times, either by Tenant or by Owner in Tenant's behalf,
shall, upon installations, become the property of Owner and
shall remain upon and be surrendered with the demised
premises unless Owner, by notice to Tenant no later then
twenty days prior to the date fixed as the termination of
this lease, elects to relinquish Owner's rights thereto and
to have them removed by Tenant, in which event, the same
shall be removed from the premises by Tenant prior to the
expirations of the lease, at Tenant's expense. Nothing in
this article shall be construed to give Owner title to or to
prevent Tenant's removal of trade fixtures, moveables office
furniture and equipment, but upon removal of any such from
the premises or upon removal of other installations as may
be requires by Owner. Tenant shall immediately and at its
expense, repair and restore the premises to the condition
existing prior ro installation and repair any damage to the
demised premises or the building due to such removal. All
property permitted or required to be removed by Tenant at
the end of the term remaining in the premises after Tenant's
removal shall be deemed abandoned and may, at the election
of Owner, either be retained as Owner's property or may be
removed from the premises by Owner at Tenant's expense.
REPAIR
4. Owner shall maintain and repair the public portions of
the building, both exterior and interior, except that if
Owner allows Tenant to erect on the outside of the building
a sign or signs, or a hoist, lift or sidewalk elevator for
the exclusive use of Tenant. Tenant shall maintain such
exterior installations in good appearance and shall cause
the same to be operated in a good and workmanlike manner and
shall make all repair thereto necessary to keep same in good
order and condition, at Tenant's own cost and expense, and
shall cause the same to be covered by the insurance provided
for hereafter in Article 8. Tenant shall, throughout the
term of this lease, take good care of the demised premises
and the fixtures and appurtenances therein, and the
sidewalks adjacent thereto, and it its sole cost and
expense, make all non-structural repairs thereto as and when
needed to preserve them in good working order and condition,
reasonable wear and tear, obsolescence and damage from the
elements and fire or other casualty, excepted. If the
demised premises be or become infested with vermin, Tenant
shall at Tenant's expense, cause the same to be exterminated
from time to time to the satisfaction of Owner. Except as
specifically provide in Article 9 or elsewhere in this
lease, there shall be no allowance to the Tenant for the
diminution of rental value and no liability on the part of
Owner by reason of inconvenience, annoyance or injury to
business arising from Owner, Tenant or others making or
failing to make any repair, alterations, additions or
improvements in or to any portion of the building or the
demised premises, or in and to the fixtures, appurtenances
or equipment thereof. The provisions of this article 4 with
respect o the making of repair shall not apply in the case
of fire or other casualty which are dealt with in article 9
hereof.
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WINDOW CLEANING
5. Tenant will not clean nor require, permit, suffer or
allow any window in demised premises to be cleaned from the
outside in violation of Section 202 of the New York State
Labor Law or any other applicable law or of the Rules of the
Board of Standards and Appeals, or of any other Board or
body having or asserting jurisdiction.
FIRE REQUIREMENTS
6. Prior to commencement of lease term, if Tenant is then in
possession, and at all times thereafter, Tenant at Tenant's
sole cost and expense, shall promptly conform to regulations
of all state, federal, municipal and local governments,
departments, commissions and boards and any direction of any
public officer pursuant to law and all orders, rules and
regulations of the New York Board of Fire Underwriters or
the Insurance Services Offices , or any similar body which
may impose violation, order or duty upon Owner or Tenant
with respect to the demised premises, and with respect to
the portion of the sidewalk adjacent to the premises, if the
premises are on the street level, whether or not arising out
of the Tenant's use or manner of use thereof, or with
respect to the building if arising out of the Tenant's use
or manner of use of the premises or the building (including
the use permitted under the lease). Except as provided in
Article 29 hereof, nothing herein shall require Tenant to
make structural repairs or alterations unless Tenant has by
its manner of use of the demised premises of method of
operation therein, violated any such laws, ordinances.
orders, rules, regulations or requirements with respect
thereto. Tenant shall not do or permit any act or thing to
be done in or to the demised premises which is contrary to
law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time
carried by or for the benefit of Owner. Tenant shall pay all
costs, expenses, fines, penalties or damages, which may he
imposed upon Owner by reason of Tenant's failure to comply
with fire provisions or this article, if the fire insurance
rate shall, at the beginning of the lease or at any time
thereafter, be higher than it otherwise would be, then
Tenant shall reimburse Owner, as additional rent hereunder,
for that portion of all fire insurance premiums thereafter
paid by Owner which Shall have been charged because of such
failure by Tenant, to comply with the terms of this article.
In any action or proceeding wherein Owner and Tenant are
parties, a schedule or "make-up" of rate for the building or
demised premises issued by a body making fire insurance
rates applicable to said premises shall be conclusive
evidence of the facts therein stated and of the several
items and charges in the fire insurance rate then applicable
to said premises.
SUBORDINATION
7. This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or
hereafter affect such leases or the real property of which
demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions
of any such underlying leases and mortgages. This clause
shall be self operative and no further instrument of
subordination shall be required by any ground or underlying
lessor or by any mortgagee affecting any lease or the real
property of which the demised premises are a part. In
confirmation of such subordination, Tenant shall execute
promptly any certificate that Owner may request.
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TENANT'S LIABILITY INSURANCE, PROPERTY LOSS, DAMAGE, INDEMNITY
8. Owner or its agents shall not be liable for any damage to
property of Tenant or of others entrusted to employees of
the building, nor for loss of or damage to any property of
Tenant by theft or otherwise, nor for any injury or damage
to persons or property resulting from any cause of
whatsoever nature, unless caused by or due to the negligence
of Owner, its agents, servants or employees. Owner or its
agents will not be liable for any such damage caused by
other tenants or persons in, upon or about said building or
caused by operations in construction of any private, public
or quasi-public work. Tenant agrees at Tenant's sole cost
and expense, to maintain general public liability insurance
in standard form in favor of Owner and Tenant against claims
for bodily injury or death or property damage occurring in
or upon the demised premises, effective from the date Tenant
enters into possession and during the term of this lease.
Such insurance shall be in an amount and with carriers
acceptable to the Owner. Such policy or policies shall be
delivered to the owner. On Tenant's default in obtaining or
delivering any such policy or policies or failure to pay the
charges therefor, Owner may secure or pay the charges for
any such policy or policies and charge the Tenant as
additional rent therefor. Tenant shall indemnify and save
harmless Owner against and from all liabilities,
obligations, damages, penalties, claims, costs and expenses
for which Owner shall not be reimbursed by insurance,
including reasonable attorneys fees, paid, suffered or
incurred as a result of any breach by Tenant, Tenant's
agent, contractors, employees, invitees, or licensees of any
covenant or condition of this lease, or the carelessness,
negligence or improper conduct of the Tenant, Tenant's
agents, contractors, employees, invitees or licensees.
Tenant's liability under this lease extends to the acts and
omissions of any subtenant, and any agent, contractor,
employee, invitee or licensee of any subtenant. In case any
action or proceeding is brought against Owner by reason of
any such claim, Tenant, upon written notice from Owner,
will, at Tenant's expense, resist or defend such action or
proceeding by Council approved by Owner in writing, such
approval not to be unreasonably withheld.
DESTRUCTION, FIRE AND OTHER CASUALTY:
9. (a) If the demised promises or any part thereof shall be
damaged by fire or other casualty, Tenant shall give
immediate notice thereof to Owner and this lease shall
continue in full force and effect except as hereinafter set
forth. (b) If the demised premises are partially damaged or
rendered partially unusable by fire or other casualty, the
damages thereto shall be repaired by and at the expense of
Owner and the rent, until such repair shall be substantially
completed, shall be apportioned from the day following the
casualty according to the part of the premises which is
usable. (c) If the demised premises are totally damaged or
rendered wholly unusable by fire or other casualty, then the
rent shall be proportionately paid up to the time of the
casualty and thenceforth shall cease until the date when the
premises shall have been repaired and restored by owner,
subject to Owner's right to elect not to restore the same as
hereinafter
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provided. (d) If the demised premises are rendered wholly
unusable or (whether or not the demised premises are damaged
in whole or in part) if the building shall be so damaged
that Owner shall decide to demolish it or to rebuild it,
then, in any of such events, Owner may elect to terminate
this lease by written notice to Tenant given within 90 days
after such fire or casualty specifying a date for the
expiration of the lease, which date shall not be more than
60 days after the giving of such notice, and upon the date
specified in such notice the terms of this lease shall
expire as fully and completely as if such date were the date
set forth above for the termination of this lease and Tenant
shall forthwith quit, surrender and vacate the premises
without prejudice however, Owner's rights and remedies
against Tenant under the lease provisions in effect prior to
such termination, and any rent owing shall be paid up to
such date and any payments of rent made by Tenant which were
on account in any period subsequent to such date shall be
returned to Tenant, unless Owner shall serve a termination
notice as provided for herein, Owner shall make the repairs
and restorations under the conditions of (b) and (c) hereof
with all reasonable expedition subject to delays due to
adjustment of insurance claims, labor troubles and causes
beyond Owner's controls. After any such casualty, Tenant
shall cooperate with Owner's restoration by removing from
the premises as promptly as reasonably possible, all of
Tenant's salvageable inventory and movable equipment,
furniture and other property. Tenant's liability for rent
shall resume five (5) days after written notice from Owner
that the premises are substantially ready for Tenant's
occupancy. (e) Nothing contained herein above shall relieve
Tenant from liability that may exist as a result of damage
from fire or other casualty. Notwithstanding the foregoing,
each party shall look first to any insurance in its favor
before making any claim against the other party for recovery
for loss or damage resulting from fire or other casualty,
and to the extent that such insurance is in force and
collectible and to the extent permitted by law Owner and
Tenant each hereby releases and waives all right of recovery
against the other or any one claiming through or under each
of them by way of subrogation or otherwise. The foregoing
release and waiver shall be in force only if both releasors'
insurance Policies contain a clause providing that such a
release or waiver shall not invalidate the insurance and
also, provided that such a policy can be obtained without
additional premiums. Tenant acknowledges that Owner will not
carry insurance on Tenant's furniture and/or furnishings or
any fixtures or equipment, improvements or appurtenances
removable by Tenant and agrees that Owner will not be
obligated to repair any damage thereto or replace the same.
(f) Tenant hereby waives the provisions of Section 227 of
the Real Property Law and agrees that the provisions of this
article shall govern and control in lieu thereof.
EMINENT DOMAIN: 10. If the whole or any part of the demised
premises shall be acquired or condemned by Eminent Domain
for any public or quasi-public use or purpose, then and in
that event, the term of this lease shall cease and terminate
from the date of title vesting in such proceeding and Tenant
shall have no claim for the value of any unexpired term of
said lease.
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ASSIGNMENT, MORTGAGE, ETC.:
11. Tenant for itself, its heirs, that it shall not assign,
mortgage or encumber this agreement, nor underlet, or suffer
or permit the demised premises or any part thereof to be
used by others, without the prior written consent of Owner
in each instance. If this lease be assigned, or if the
demised premises or any part thereof be underlet or occupied
by anybody other than Tenant, Owner may, after default by
Tenant, collect rent from the assignee, under-tenant or
occupant, and apply the net amount collected to the rent
herein reserved, but no such assignment, underletting,
occupancy or collection shall be deemed a waiver of the
covenant, or the acceptance of the assignee, under-tenant or
occupant as tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant
herein contained. The consent by Owner to an assignment or
underletting shall not in any wise be construed to relieve
Tenant from obtaining the express consent in writing of
Owner to any further assignment or under letting.
ELECTRIC:
12. Rates and conditions in respect to submetering or rent
inclusion, as the case may be, to be added in RIDER attached
hereto. Tenant covenants and agrees that at all times its
use of electric current shall not exceed the capacity of
existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment
which, in Owner's opinion, reasonably exercised, will
overload such installations or interfere with the use
thereof by other tenants of the building, The change at any
time of the character of electric service shall in no wise
make Owner liable or responsible to Tenant, for any loss,
damages or expenses which Tenant may sustain.
ACCESS TO PREMISES:
13. Owner or Owner's agents shall have the right (but shall
not be obligated) to enter the demised premises in any
emergency at any time, and, at other reasonable, times, to
examine the same and to make such repairs, replacements and
improvements as Owner may deem necessary and reasonably
desirable to any portion of the building or which Owner may
elect to perform, in the premises, following Tenant's
failure to make repairs or perform any work which Tenant is
obligated to perform under this lease, or for the purpose of
complying with laws, regulations and other directions of
governmental authorities. Tenant shall permit Owner to use
and maintain and replace pipes and conduits in and through
the demised premises and to erect new pipes and conduits
therein, provided they are within the walls. Owner may,
during the progress of any work in the demised premises,
take all necessary materials and equipment into said
premises without the same constituting an eviction nor shall
the Tenant be entitled to any abatement of rent while such
work is in progress nor to any damages by reason of loss or
interruption of business or otherwise. Throughout the term
hereof Owner shall have the right to enter the demised
premises at reasonable hours for the purpose of showing the
same to prospective purchasers or mortgages of the building,
and during the last six months of the term for the purpose
of showing the same to prospective tenants and may, during
said six months period, place upon the premises the usual
notice "To Let" and "For Sale"' which notices Tenant shall
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permit to remain thereon without molestation. If Tenants not
present to open and permit an entry into the premises, Owner
or Owner's agents may enter the same whenever such entry may
be necessary or permissible by master key or forcibly and
provided reasonable care is exercised to safeguard Tenant's
1)property and such entry shall not render Owner or its
agents liable therefore nor in any event shall the
obligations of the Tenant hereunder be affected. If during
the last month of term, Tenant shall have removed all or
substantially all of Tenant's property therefrom, Owner may
immediately enter, alter, renovate or redecorate the demised
premises without limitation or abatement of rent, or
incurring liability to Tenant for any compensation and such
act shall have no effect on this lease or Tenant's
obligations hereunder. Owner shall have the right at any
time, without the same constituting an eviction and without
incurring liability to Tenant therefor to change the
arrangement and/or location of public entrances,
passageways, doors, doorways, corridors, elevators. stairs,
toilets, or other public parts of the building and to change
the name, number or designation by which the building may be
known.
VAULT, VAULT SPACE, AREA:
14. No vaults, vault space or area, whether or not enclosed
or covered, not within the property line of the building is
leased hereunder, anything contained in or indicated on any
sketch, blue print or plan, or anything contained elsewhere
in this lease to the contrary notwithstanding. Owner makes
no representation as to the rotation of the property line of
the building. All vaults and vault space and all such areas
not within the property line of the building, which Tenant
may be permitted to use and/or occupy, is to be used and/or
occupied under a revocable license, and if any such license
be revoked, or if the amount of such space or area be
diminished or required by any federal, state or municipal
authority or public utility. Owner shall not be subject to
any liability nor shall Tenant be entitled to any
compensation or diminution or abatement of rent, nor shall
such revocation, diminution or requisition be deemed
constructive or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall be paid
by Tenant.
OCCUPANCY:
15. Tenant will not at any time use or occupy the demised
premises in violation of, Articles 2 or 37 hereof, or of,
the certificate of occupancy issued for the building of
which the demised premises are a part. Tenant has inspected
the premises and accepts them as is, subject to the riders
annexed hereto with respect to Owner's work, if any. In any
event, Owner makes no representation as to the condition of
the premises and Tenant agrees to accept the same subject to
violations whether or not of record.
BANKRUPTCY:
16. (a) Anything elsewhere in this lease to the contrary
notwithstanding. this lease may be canceled by Landlord by
the sending of a written notice to Tenant within a
reasonable time after the happening of any one or more of
the following events: (1) the commencement of a case in
bankruptcy or under the laws of any state naming Tenant as
the debtor; or (2) the making by Tenant of an assignment or
any other arrangement for the benefit of creditors under any
state statute, neither Tenant nor any person claiming
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through or under Tenant, or by reason of any statute or
order of court, shall thereafter be entitled to possession
of the premises demised but shall forthwith quit and
surrender the premises. If this lease shall be assigned in
accordance with its terms. the provisions of this Article 16
shall be applicable only to the party then owning Tenant's
interest in this case. (b) It is stipulated and agreed that
in the event of the termination of this lease pursuant to
(a) hereof, Owner shall forthwith, notwithstanding any other
provisions of this lease to the contrary, be entitled to
recover from Tenant as and for liquidated damages an amount
equal to the difference between the rent reserved hereunder
for the unexpired portion of the term demised and the fair
and reasonable rental value of the demise premises for the
same period. In the computation of such damages the
difference between any installment of rent becoming due
hereunder after the date of termination and the fair and
reasonable rental value of the demised premises for the
period for which such installment was payable shall be
discounted to the date of termination at the rate of four
per cent (4%) per annum. If such premises or any part
thereof be re-let by the Owner for the unexpired term of
said lease, or any part thereof, before presentation of
proof of such liquidated damages to any court, commission or
tribunal, the amount or rent reserved upon such re-letting
shall be deemed to be the fair and reasonable rental value
for the part or the whole of the premises so re-let during
the term of the re-letting. Nothing herein contained shall
limit or prejudice the right of the Owner to prove for and
obtain as liquidated damages by reason of such termination,
an amount equal to the maximum allowed by any statute or
rule of law in effect at the time when, and governing the
proceedings in which. such damages are to be proved, whether
or not such amount be greater, equal to, or less than the
amount of the difference referred to above.
DEFAULT:
17. (1) If Tenant defaults in fulfilling any of the
covenants of this lease other than the covenants for the
payment of rent or additional rent., or if the demised
premises become vacant or deserted; or if any execution or
attachment shall be issued against Tenant or any of Tenant's
property whereupon the demised promises shall be taken or
occupied by someone other than Tenant; or if this lease be
rejected under Section 365 of Title 11 of the U.S. Code
(Bankruptcy Code); or if Tenant shall fail to move into or
take possession of he premises within Fifteen (15) days
after the commencement of the term of this lease, of which
fact Owner shall the the sole judge; then, in any one or
more of such events, upon Owner serving a written five (5)
days notice upon Tenant specifying the nature of said
default. and upon the expiration of said five (5) days, if
Tenant shall have failed to comply with or remedy such
default, or if the said default or omission complained of
shall be of a nature that the same cannot be completely
cured or remedied within said five (5) day period, and if
Tenant shall not have diligently commenced curing such
default within such five (5) day period, and shall not
thereafter with reasonable diligence and in good faith
proceed to remedy or cure such default, then Owner may serve
a written three (3) days notice of cancellation of this
lease upon Ten ant, and upon the expiration of said three
(3) days, this lease and the term thereunder shall end and
expire as fully and completely as if the expiration
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of such three (1) day period were the day herein definitely
fixed for the end and expiration of this lease, and the term
thereof and Tenant shall then quit and surrender the demised
premises to Owner but Tenant shall remain liable as
hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been
given, and the term shall expire as aforesaid; or if Tenant
shall make default in the payment of the rent reserved
herein or any item of additional rent herein mentioned or
any part of either or in making any other payment herein
required; then and in any of such events Owner may without
notice, re-enter the demised premises either by force or
otherwise, and dispossess Tenant by summary proceedings or
otherwise, and the legal representative of Tenant or other
occupant of demised premises and remove their effects and
hold the premises as if this lease had not been made, and
Tenant hereby waives the service of notice of intention to
re-enter or to institute legal proceedings to that end.
REMEDIES OF OWNER AND WAIVER OF REDEMPTION:
18. In case of any such default, re-entry, expiration and/or
dispossess by summary proceedings or otherwise, (a) the
rent, and additional rent, shall become due thereupon and be
paid up to the time of such re-entry, dispossess and/or
expiration. (b) Owner may re-let the premises or any part or
parts thereof, either in the name of Owner or otherwise, for
a term OR TERMS WHICH MAY AT OWNER'S OPTION BE LESS than or
exceed the period which would otherwise have constituted the
balance of the term of this lease and may grant concessions
or free rent or charge a higher rental than that in this
lease, and/or (c) Tenant or the legal representatives of
Tenant shall also pay Owner as liquidated damages for the
failure of Tenant to observe and perform said Tenant's
covenants herein contained, any deficiency between the rent
hereby reserved and/or convenanted to be paid and the net
amount if any, of the rents collected an account of the
subse quent lease or leases of the demised premises for each
month of the period which would otherwise have constituted
the balance of the term of this lease. The failure of Owner
to re-let the premises or any part or parts thereof shall
not release or affect Tenant's liability for damages. In
computing such liquidated damages there shall be added to
the said deficiency such expenses as Owner may incur in
connection with re- letting, such as legal expenses,
attorneys' fees, brokerage, advertising and for keeping the
demised premises in good order or for preparing the same for
re-letting. Any such liquidated damages shall be paid in
monthly installments by Tenant on the rent day specified in
this lease. Owner, in putting the demised premises in good
order or preparing the same for re- rental may, at Owner's
option, make such alterations, repairs, replacements, and/or
decorations in the demised premises as Owner, in Owner's
sole judgement, considers advisable and necessary for the
purpose of re-letting the demised premises, and the making
of such alterations. repairs, replacements, and/or
decorations shall not operate or be construed to release
Tenant from liability. Owner shall in no event be liable in
any way whatsoever for failure to re-let the demised
premises, or in the event that the devised promises are
re-let, for failure to collect the rent thereof Under such
reaching, and in no event shall Tenant be entitled
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to receive any excess, if any, of such net rent collected
over the sums payable by Tenant to Owner hereunder, In the
event of a breach or threat ened breach by Tenant or an of
the covenants or provisions hereof, Owner shall have the
right of injunction and the right to invoke any remedy
allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for.
Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity.
Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws.
FEES AND EXPENSES:
19. If Tenant shall default in the observance or performance
of any term or covenant on Tenant's part to be observed or
performed Under or by virtue of any of the terms or
provisions in any article of this lease, then, unless
otherwise provided elsewhere in this lease, Owner may
immediately or at any time thereafter and without notice
perform the obligation of Tenant thereunder, and if Owner,
in connection therewith or in connection which any default
by Tenant in the covenant to pay rent hereunder, makes any
expenditures or incurs any obligations for the payment of
money, including but not limited to attorney's fees, in
instituting, prosecuting or defending any actions or
proceeding, such sums so paid or obligations incurred with
interest and costs shall be deemed to be additional rent
hereunder and shall be paid by Tenant to Owner within five
(5) days of rendition of any xxxx or statement to Tenant
therefor, and if Tenant's lease term shall have expired at
the time of making of such expenditures or incurring of such
obligations, such sums shall be recoverable by Owner as
damages.
NO REPRESENTATIONS BY OWNER:
20. Neither Owner nor Owner's agents have made any
representations or promises with respect to the physical
condition of the building, the land upon which it is erected
or the demised promises, the rents, leases, expenses of
operation, or any other matter or thing affecting or related
to the premises except as herein expressly set forth and no
rights, easements or licenses are acquired by Tenant by
implication or otherwise except as expressly set forth in
the provisions of this lease. Tenant has inspected the
building and the demised premises and is thoroughly
acquainted with their condition, and agrees to take the same
"as is", and acknowledges that the taking of possession of
the demised premises by Tenant shall be conclusive evidence
that the said premises and the building of which the same
form a part were in good and satisfactory condition at the
time such possession was so taken, except as to latent
defects. All understandings and agreements heretofore made
between the parties hereto are merged in this contract,
which alone fully and completely expresses the agreement
between Owner and Tenant and any executory agreement
hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of it in whole or in
part, unless such executory agreement is in writing and
signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
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END OF TERM:
21. Upon the expiration or other termination of the term of
this lease, Tenant shall quit and surrender to Owner the
demised premises, broom clean, in good order and condition,
ordinary wear excepted, and Tenant shall remove all it's
property. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination
of this lease. If the last day of the term of this lease or
any renewal thereof, falls on Sunday, this lease shall
expire at noon on the preceding Saturday unless it be a
legal holiday in which case it shall expire at noon on the
preceding business day.
QUIET ENJOYMENT:
22. Owner covenants and agrees with Tenant that upon Tenant
paying the rent and additional rent and observing and
performing the terms, covenants and conditions on Tenant's
part to be observed and performed. Tenant may peaceably and
quietly enjoy the premises hereby demised, subject,
nevertheless, to the terms and conditions of this lease
including, but not limited to, Article 33 hereof and to the
ground leases, underlying leases and mortgages hereinbefore
mentioned.
FAILURE TO GIVE POSSESSION:
23. If Owner is unable to give possession of the demised
premises on the date of the commencement of the term hereof,
because of the holding-over or retention of possession of
any Tenant, undertenant or occupants, or if the premises arc
located in a building being constructed, because such
building has not been sufficiently completed to make the
premises ready for occupancy or because of the fact that a
certificate of occupancy has not been procured or for any
other reason, Owner shall not be subject to any liability
for failure to give possession on said date and the validity
of the lease shall not be impaired under such circumstances,
nor shall the same be construed in any wise to extend the
term of this lease, but the rent payable hereunder shall be
abated provided Tenant is not responsible for the inability
to obtain possession until after Owner shall have given
Tenant written notice that the premises are substantially
ready for Tenant's occupancy. If permission is given to
Tenant to enter into the possession of the demised premises
or to occupy premises other than the demised premises prior
to the date specified as the commencement of the term of
this lease. Tenant covenants and agrees that such occupancy
shall be deemed to be under all the terms, covenants.
conditions and provisions of this lease, except as to the
covenant to pay rent. The provisions of this article arc
intended to constitute "an express provision to the
contrary" within the meaning of Section 223-a of the New
York Real Property Law.
NO WAIVER:
24. The failure of Owner to seek redress for violation of,
or to insist upon the strict performance of any covenant or
condition of this lease or of any of the Rules or
Regulations set forth or hereafter adopted by Owner, shall
not prevent a subsequent act which would have originally
constituted a violation from having all the force and effect
of an original violation. The receipt by owner of rent with
knowledge of the breach of any covenant of this lease shall
not be deemed a waiver of such breach and no provision of
this lease shall be deemed to have been waived by Owner
unless such waiver be in writing signed by Owner, No payment
by Tenant or receipt by Owner of a lesser amount than the
monthly rent herein stipulated shall be deemed to be other
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than an account of the earliest stipulated rent, nor shall
any endorsement or statement of any check or any letter
accompanying any check or payment as rent be deemed an
accord and satisfaction, and Owner may accept such check or
payment without prejudice to Owner's right to recover the
balance of such rent or pursue any other remedy in this
lease provided, no act or thing done by Owner or Owner's
agents during tho term hereby demised shall be deemed in
acceptance of a surrender of said premises and no agreement
to accept such surrender shall be valid unless in writing
signed by Owner. No employee of Owner or Owner's agent shall
have any power to accept the keys of said premises prior to
the termination of the lease and the delivery of keys to any
such agent or employee shall not operate as a termination of
the lease or a surrender of the premises.
WAIVER OF TRIAL BY JURY:
25. It is mutually agreed by and between Owner and Tenant
that the respective parties hereto shall and they hereby do
waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against
the other (except for personal injury or property damage) on
any matters whatsoever arising out of or in any way
connected with this lease, the relationship of Owner and
Tenant. Tenant's use of or occupancy of said premises, and
any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Owner commences
any summary proceeding for possession of the premises,
Tenant will not interpose any counterclaim of whatever
nature or description in any such proceeding.
INABILITY TO PERFORM:
26. This lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and
agreements hereunder on part of Tenant to be performed shall
in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease or
to supply or is delayed in supplying any service expressly
or implicitly to be supplied or is unable to make, or is
delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in
supplying any equipment or fixtures if owner is prevented or
delayed from so doing by reason of strike or labor troubles,
government preemption in connection with a national
emergency or by reason of any rule, order or regulation of
any department or subdivision thereof of any government
agency or by reason of the conditions of supply and demand
which have been or are affected by war or other, emergency,
or when, in the judgment of Owner, temporary interruption of
such services is necessary by reason of accident, mechanical
breakdown, or to make repairs, alterations or improvements.
BILLS AND NOTICES:
27. Except as otherwise in this lease provided, a xxxx,
statement, notice or communication which Owner may desire or
be required to give to Tenant, shall be deemed sufficiently
given or rendered if, in writing, delivered to Tenant
personally or sent by registered certified mail addressed to
Tenant at the building of which the demised premises form a
part or at the last known residence address or business
address of Tenant or left at any of the
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aforesaid premises addressed to Tenant, and the time of the
rendition of such xxxx or statement and of the giving of
such notice or communication shall be deemed to be the time
when the same is delivered to Tenant, mailed, or left at the
premises as herein provided. Any notice by Tenant to Owner
must be served by registered or certified mail addressed to
Owner at the address first herein above given or at such
other address as Owner shall designate by written notice.
WATER CHARGES:
28. If Tenant requires, uses or consumes water for any
purpose in addition to ordinary lavatory purposes (of which
fact Tenant constitutes Owner to be the sole judge) Owner
may install a water meter and thereby measures Tenant's
water consumption for all purposes. Tenant shall pay Owner
for the cost of the meter and the cost of the installation
thereof and throughout the duration of Tenant's occupancy
Tenant shall keep said meter and installation equipment in
good working order and repair at Tenant's own cost and
expense. Tenant agrees to pay for water consumed, as shown
on said meter as and when bills are rendered. Tenant
covenants and agrees to pay the sewer rent, charge or any
other tax, rent, levy or charge which now or hereafter is
assessed, imposed or a lien upon the demised premises or the
realty of which they are part pursuant to law, order or
regulation made or issued in connection with the use,
consumption, maintenance or supply of water, water system or
sewage or sewage connection or system. The xxxx rendered by
Owner shall be payable by Tenant as additional rent. If the
building or the demised premises or any part thereof be
supplied with water through a meter through which water is
also supplied to other promises Tenant shall pay to Owner as
additional rent, on the first day of each month, %, ($ ) of
the total meter charges, as Tenant's portion. Independently
of and in addition to any of the remedies reserved to Owner
herein above or elsewhere in this lease. Owner may xxx for
and collect any monies to be paid by Tenant or paid by Owner
for any of the reasons or purposes herein above set forth.
SPRINKLERS:
29. Anything elsewhere in this lease to the contrary
notwithstanding, if the New York Board of Fire Underwriters
or the Insurance Services Office or any bureau, department
or official of the federal, state or city government require
or recommend the installation of a sprinkler system or that
any changes, modifications, alterations, or additional
sprinkler heads or other equipment be made or supplied in an
existing sprinkler system by reason of Tenant's business, or
the location of partitions, trade fixtures, or other
contents of the demised premises, or for any other reason,
or if any such sprinkler system installations, changes,
modifications, alterations, additional sprinkler heads or
other such equipment become necessary to prevent the
imposition of a penalty or charge against the full allowance
for a sprinkler system in the fire insurance rate set by any
said Exchange or by any fire insurance company. Tenant
shall, at Tenant's expense, promptly make such sprinkler
system installations, changes, modifications, alterations,
and supply additional sprinkler heads or other equipment as
required whether the work involved shall be structural or
non-structural in nature, Tenant shall pay to Owner as
additional rent the sum of $ , on the first day of each
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month during the term of this lease, as Tenant's portion of
the contract price for sprinkler supervisory service.
HEAT, CLEANING:
30. As long as Tenant is not in default under any of the
covenants of this lease, Owner shall, if and insofar as
existing facilities permit, furnish heat to the demised
premises, when and as required by law, on business days from
8:00 a.m. to 6:00 p.m., and on Saturdays from 8:00 a.m. to
1:00 p.m. Tenant shall at Tenant's expense, keep demised
premises clean and in order, to the satisfaction of Owner,
and if demised premises are situated on the street floor,
Tenant shall, at Tenant's own expenses make all repairs and
replacements to the sidewalks and curbs adjacent thereto,
and keep said sidewalks and curbs free from snow, ice, dirt
and rubbish. Tenant shall pay to Owner the cost of removal
of any of Tenant's refuse and rubbish from the building.
Bills for the same shall be rendered by Owner to Tenant at
such times as Owner may elect and shall be due and payable
when rendered, and the amount of such bills shall be deemed
to be, and be paid as additional rent. Tenant shall,
however, have the option of indepen dently contracting for
the removal of such rubbish and refuse in the event that
Tenant does not wish to have same done by employees of
Owner. Under such circumstances, however, the removal of
such refuse and rub xxxx by others shall be subject to such
rules and regulations as, in the judgment of Owner, are
necessary for the proper operation of the building.
SECURITY:
31. Tenant has deposited with Owner the sum of $ as security
for the faithful performance of and observance by Tenant of
the terms, provisions and conditions of this lease, it is
agreed that in the event Tenant defaults in respect of any
of the terms, provisions and conditions of this lease, in
cluding, but not limited to, the payment of rent and
additional rent. Owner may use, apply or retain the whole or
any part of the security so deposited to the extent required
for the payment of any rent and additional rent or any other
sum as to which Tenant is in default or for any sum which
Owner may expend or may be required to expend by reason of
Tenant's default in respect of any of the terms, covenants
and conditions of this lease, including but not limited to,
any damages or deficiency in the refitting of the premises,
whether such damages or deficiency accrued before or after
summary proceedings or other re-entry by Owner. In the event
that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this
lease, the security shall be returned to Tenant after the
date fixed as the end of the lease and after delivery of
entire possession of the demised premises to Owner. In the
event of sale of the land and building or leasing of the
building, of which the demised premises form a part, Owner
shalt have the right to transfer the security to the vendee
or lessee and Owner shall thereupon be released by Tenant
from all liability for the return of such security, and
Tenant agrees to look to the new Owner solely for the return
of said security; and it is agreed that the provisions
hereof shall apply to every transfer or assignment made of
the security to a new Owner. Tenant further covenants that
it will not assign or encumber or attempt to assign or
encumber the monies deposited herein as security and that
neither Owner nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment or
attempted encumbrance.
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CAPTIONS:
32. The Captions are inserted only as a matter of
convenience and for reference and in no way define, limit or
describe the scope of this lease nor the intent of any
provision thereof.
DEFINITIONS:
33. The term "Owner" as used in this lease means only the
Owner, or the mortgagee in possession, for the time being of
the land and building (or the Owner of a lease of the
building or of the land and building) of which the demised
premises form a part, so that in the event of any sale or
sales of said land and building or ,of said lease, or in the
event of a lease of said building, or of the land and
building, the said Owner shall be and hereby is entirely
freed and relieved of all covenants and obligations of Owner
hereunder, and it shall be deemed and construed without
further agreement between the parties of their successors in
interest, or between the parties and the purchaser, at any
such sale, or the said lessee of the building, or of the
land and building, that the purchaser or the lessee of the
building has assumed and agreed to carry out any and all
covenants and obligation of Owner hereunder. The words
"re-enter" and "re-entry" as used in this lease are not
restricted to their technical legal meaning. The term
"business days" as used in this lease shall exclude
Saturdays (except such portion thereof as is covered by
specific hours in Article 30 hereof). Sundays and all days
designated as holidays by the applicable building service
union employees service contract or by the applicable
Operating Engineers contract with respect to HVAC service.
ADJACENT EXCAVATION/SHORING:
34. If an excavation shall be made upon land
adjacent to the demised premises, or shall
be authorized to be made, Tenant shall
afford to the person causing or authorized
to cause such excavation, license to enter
upon the demised premises for the purpose of
doing such work as said person shall deem
necessary to preserve the wall or the
building of which demised premises form a
part from injury or damage and to support
the same by proper foundations without any
claim for damages or indemnity against Owner
or diminution or abatement of rent.
RULES AND REGULATIONS:
35. Tenant and Tenant's servants, employees,
agents, visitors, and licensees shall
observe faithfully, and comply strictly with
the Rules and Regulations and such other and
further reasonable Rules and Regulations as
Owner or Owner's agents may from time to
time adopt. Notice of any additional rules
or regulations shall be given in such manner
as Owner may elect. In case Tenant disputes
the reasonableness of any additional Rule or
Regulation hereafter made or adopted by
Owner or Owner's agents, the parties hereto
agree to submit the question of the
reasonableness of such Rule or Regulation
for decision to the New York office of the
American Arbitration Association, whose
determination shall be final and conclusive
upon the parties hereto. The right to
dispute the reasonableness of any additional
Rule or Regulation upon Tenant's part shall
be deemed waived unless the same shall be
asserted by service of a
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notice, in writing, upon Owner within ten
(10) days after the giving of notice
thereof. Nothing in this lease contained
shall be construed to impose upon Owner any
duty or obligation to enforce the Rules and
Regulations or terms, covenants or
conditions In any other lease, as against
any other tenant and Owner shall not be
liable to Tenant for violation of the same
by any other tenant, its servants,
employees, agents, visitors or licensees.
GLASS:
36. Owner shall replace, at the expense of Tenant, any and
all plate and other glass, damaged or broken from any cause
whatsoever in and about the demised premises. Owner may
insure, and keep insured, at Tenant's expenses all plate and
other glass in the demised premises for and in the name of
Owner. Bills for the premiums therefor shall be rendered by
Owner to Tenant at such times as Owner may elect, and shall
be due from, and payable by, Tenant when rendered, and the
amount thereof shall be deemed to be, and be paid as,
additional rent.
PORNOGRAPHIC USE PROHIBITED:
37. Tenant agrees that the value of the demised premises and
the reputation of the Owner will be seriously injured if the
premises are used for any obscene or pornographic purposes
or any sort of commercial sex establishment. Tenant agrees
that Tenant, will not bring or permit any obscene
or-pornographic material on the premises, and shall not
permit or conduct any obscene, nude, or semi-nude live
performances on the premises, nor permit use of the premises
for nude modeling, rap sessions, or as a so-called rubber
goods shop, or as a sex club of any sort, or as a massage
parlor. Tenant agrees further that Tenant will not permit
any of these uses by any sublessee or assignee of the
premises. This Article shall directly bind any successors in
interest to the Tenant. Tenant agrees that if at any time
Tenant violates any of the provisions of this Article, such
violation shall be deemed a breach of a substantial
obligation of the terms of this lease and objectionable
conduct. Pornographic material is defined for purposes of
this Article as any written or pictorial matter with
prurient appeal or any objects of instrument that are
primarily concerned with lewd or prurient sexual activity.
Obscene material is defined here as it is in Penal law
ss.235.00.
ESTOPPEL CERTIFICATE:
38. Tenant, at any time, and from time to time, upon at
least 10 days prior notice by Owner, shall execute,
acknowledge and deliver to Owner, and/or to any other
person, firm or corporation specified by Owner, a statement
certifying that this lease is unmodified and in full force
and effect (or, if there have been modifications, that the
same is in full force and effect as modified and stating the
modifications), stating the dates which the rent and
additional rent have been paid, and stating whether or not
there exists any defaults by Owner under this lease, and if
so, specifying each such default.
SUCCESSORS AND ASSIGNS:
39. The covenants. conditions and agreements contained in
this lease shall bind and inure to the benefit of Owner and
Tenant and their respectiveheirs, distributees, executors,
72
administrators, successors, and except as otherwise provided
in this lease, their assigns.
IN WITNESS THEREOF, Owner and Tenant have respectively signed and
sealed this lease as of the day and year first above written.
/S/ XXXX XXXXXXX
---------------------
XXXX XXXXXXX
CHILD'S PLAYROBICS, INC.
/S/ XXX XXXXXXXX
--------------------
XXX XXXXXXXX, VICE PRESIDENT
/S/ XXXXXX X. XXXXXXX
---------------------
XXXXXX X. XXXXXXX, PRESIDENT
[THIS SPACE INTENTIONALLY LEFT BLANK]
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 35
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress to and egress from
the demised premises and for delivery of merchandise and equipment in a prompt
and efficient manner using elevators and passageways designated for such
delivery by Owner. There shall not be used in any space, or in the public hall
of the building, either by any Tenant or by jobbers, or others in the delivery
or receipt of merchandise, any hand trucks except those equipped with rubber
tires and safeguards.
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2. If the premises are situated an the ground floor of the building,
Tenant thereof shall further, at Tenant's expense, keep the sidewalks and curb
in front of said premises clean and free from ice, snow, etc.
3. The water and wash closets and plumbing fixtures shall not be used
for any purposes other than those for which they were designed or constructed.
4. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the demised premises, or permit or suffer the
demised premises to be occupied or used in a manner offensive or objectionable
to Owner or other occupants of the building by reason of noise, odors and/or
vibrations or interfere in any way with other Tenants or those having business
therein.
5. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any Tenant on any part of the
outside of the demised premises or the building or are the inside of the demised
premises if the same is visible from the outside of the premises without the
prior written consent of Owner, except that the name of Tenant may appear on the
entrance door of the premises. In the event of the violation of the foregoing by
any Tenant, Owner may remove same without any liability and may charge the
expense incurred by such removal to Tenant or Tenants violating this rule. Signs
on interior doors and directory tablet shall be inscribed, painted or affixed
for each Tenant by Owner at the expense of such Tenant, and shall be of a size,
color and style acceptable to Owner.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any
part of the demised premises or the building of which they form a part. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of Owner and as Owner may direct. No Tenant shall lay linoleum
or similar floor covering so that the same may come in direct contact with the
floor of the demised premises, and, if linoleum or other similar floor covering
is desired to be used, an underlining of builders deadening felt shall be first
affixed to the floor by a plastic or other material, soluble in water, the use
of cement or other similar adhesive material being expressly prohibited.
7. Freight, furniture, business equipment, merchandise and bulky matter
of any description shall be delivered to and removed from the premises only on
the freight elevators and through the service entrance and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought in to the building and to exclude from the
building all freight which violates any of theft Rules and Regulations or the
lease of which these Rules and Regulations are a part.
8. Owner reserves the right to exclude from the building between the
hours of 6 p.m. and 8 a.m., and at all hours on Sunday and holidays all persons
who do not present a pass to the building signed by the Owner. Owner will
furnish passes to persons for whom any Tenant requests same in writing. Each
Tenant shall be responsible for all Persons for whom he requests such pass and
shall be liable to Owner for all acts of such person.
9. Owner shall have the right to prohibit any advertising by any Tenant
which, in Owner's opinion, tends to impair the reputation of Owner or its
desirability as a building for stores or offices, and upon written notice from
Owner, Tenant shall refrain from or discontinue such advertising.
10. Tenant shall not bring or permit to be brought or kept in or on the
demised premises, any inflammable, combustible or explosive fluid, material,
chemical or substance, or cause or permit any odors of cooking or other process,
or any unusual or other objectionable odors to permeate in or eminate from the
demised premises.
11. Tenant shall not place a load on any floor of the demised premises
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exceeding the floor load per square foot area which it was designed to carry and
which is allowed by law. Owner reserves the right to prescribe the weight and
position of all safes, business machines and mechanized equipment. Such
installations shall be placed and maintained by Tenant at Tenant's expense in
setting sufficient in Owner's judgement to absorb and proven vibration, noise
and annoyance.
GUARANTY
The undersigned guarantor guarantees to Owner, Owner's successors and
assigns, that full performance and observance of all the agreements to be
performed and observed by Tenant in the attached lease, including the "Rules and
Regulations"as therein provided, without requiring any notice to Guarantor of
nonpayment or, nonperformance, or proof, or notice of demand, to hold the
undersigned responsible under this guaranty, all of which the undersigned hereby
expressly waives and expressly agrees that the legality of this agreement and
the agreements of the Guarantor under this agreement shall not be ended, or
changed by reason of the claims to Owner against Tenant of any of the rights or
remedies attached lease. The guarantor further agrees that this guaranty shall
remain and continue in full force and effect as to any renewal, change or
extension of the lease. As a further inducement to Owner to make the lease Owner
and Guarantor agree that in any action or proceeding brought by either Owner or
Guarantor against the other on any matters concerning the lease or of this
guaranty that Owner and the undersigned shall and do waive trial by jury.
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